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BIA's New Take on Taking Land into Trust
for Indians
May 6, 2020
The Department of the Interior (DOI) recently released Solicitor's Opinion M-37055 and new guidamce
on taking land into trust under Section 5 of the Indian Reorganization Act (IRA) of 1934. The IRA is the
major law under which the Secretary of the Interior (Secretary) acquires land in trust for the benefit of
federally recognized Indian tribes. M-37055 withdrew an earlier interpretation that had guided the DOI's
land-into-trust process under the IRA since the Supreme Court's 2009 1rclcii v Sala-zmr decision.
In Carcieri, the Court ruled that, for the Secretary to take land into trust, Section 5 required tribes to have
been under Federal jurisdiction when Congress enacted the IRA. As a result, Carcieri cast doubt on the
Secretary's authority to take land into trust for tribes that were added to DOI's list of federally recognized
tribes after 1934. DOI's earlier interpretation laid out a process for evaluating whether a tribe was under
Federal jurisdiction in 1934. The new guidance requires tribes to have been both recognized and
under Federal jurisdiction in 1934 and outlines a four-step process for meeting those requirements. The
new guidance does not disturb completed land acquisitions under the earlier interpretation.This Sidebar
analyzes distinctions between the two interpretations and suggests possible considerations for Congress.
Background
Congress enacted the IRA in 1934 to end Federal policies of termination and allotment and begin an era
of empowering tribes by restoring their homelands and encouraging self-determination. To remedy
losses of tribal land under earlier federal policies, Section 5 of the IRA delegated discretion to the
Secretary to acquire ... any interest in lands ... for the purpose of providing lands for Indians. Section
19 of the IRA defines Indian to include[] all persons of Indian descent who are members of any
recognized Indian tribe now under Federal jurisdiction. (Emphasis added). Until Carcieri, DOI
interpreted Section 5 to apply to all tribes federally recognized at the time of the trust acquisition.
Carcieri invalidated that interpretation, overturning a DOI decision to take land into trust for a tribe not
federally recognized until 1983. Carcieri held that now under Federal jurisdiction in the IRA referred to
1934 rather than the time of trust acquisition.
In a concurring opinion in Carcieri, Justice Breyer addressed the related issue of whether the word now
in the IRA not only restricts land-into-trust acquisition authority, but also restricts DOI's authority to
Congressional Research Service
https://crsreports.congress.gov
LSB10460
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